Monthly Archives: April 2013

CHILDREN, AND ANONYMOUS SPEECH ON THE INTERNET AS A PURPORTED FIRST AMENDMENT RIGHT

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Children and child advocates must deal with a very different First Amendment world than did our forefathers.   They had the Village Green.  They almost always knew who was speaking.  Even the anonymous anti-British pamphleteers could encounter a responding pamphlet.  In general, America has allowed those who are criticized to respond close in time to the same audience.   In later times, concealed speakers making anonymous claims were limited in their access to mass media by professional journalists who insisted on a second independent source if someone wanted to hide, and letters to the editor quickly juxtaposed in editorial pages with some variety of viewpoint.   And rules of libel gave false accusers pause.   But the Internet is very different.  And its differences affect children directly in terms of bullying and privacy, and the political efficacy of the child advocates who represent them.

The Internet goes into our homes.  Its messages go to listserves chosen by the sender and likely not entirely known by the accused subject of the message.  Or the postings are accessible based on search engines of Google and other private corporations.  And the Internet service providers have won a major concession from the Congress – they are absolutely immune from libel.  Accordingly, they rank and disseminate anonymous libel with impunity.  And their messages cannot be easily answered per the assumption of “free speech interchange to ascertain the truth.”   Far from it.  You do not know who got the message.  Anyone receiving it can transmit it to others and then to others.  Even the search engines rarely allow a response to be juxtaposed so it is accessible to those seeing the accusation.  And it gets worse.  Because the concealed speaker can post multiple messages all from purportedly different sources.  And the messages stay there…sometimes accessible by search engines at the very top, for years.

The implications of all of this for child bullying and suicide are well known to those of us who represent children.  But it goes beyond direct abuse and affects basic political/ethical standards.   For wealthy corporations, after Citizens United, are largely “persons” with First Amendment rights.  Concealment of the speaker has some limited First Amendment value where a whistleblower is speaking truth to power, truth that feared retaliation would prevent from utterance.  But that is actually a fairly narrow First Amendment circumstance, one most advantageously addressed by statutes (now in a majority of the states) that inhibit employer sanctions or litigation to punish someone who blows the whistle.  And those important protections apply whether the speaker is courageous enough to announce himself, or whose identity is known already by the accused – as is often the case.

As noted, sometimes concealment can serve a First Amendment purpose, but the underlying value in knowing who is talking is entitled to relatively high priority in the hierarchy of free speech valuation.   That identification means that the audience knows who is talking, and can accordingly decide whether they want to listen or read – a rather significant right in a world of message barrages.  Perhaps more important, it allows the audience to weigh bias and expertise.  It improves the ascertainment of truth, a First Amendment purpose.  And the accountability that public disclosure provides discourages the bullying that we have seen increase exponentially over the past decade, as well as privacy incursions and false accusations generally.

Apart from the discouragement of child abuse, speaker identification also performs a critical function on the political front.  Historically, political reformers have advocated for transparency.  We want to know who is providing our political messaging.   We want to know who is funding it.   We want to know campaigners, and campaign contributors.  We want to know who is lobbying, who they represent and the subject matter of their attempted influence.   Here is the fact many of my colleagues have not fully absorbed:  Much of all of this is now taking place on the Internet.   Regrettably, Public Citizen, otherwise an admirable advocate for consumer rights, inconsistently backs “concealment of the speaker.”  It backs the so-called Dendrite rule that posits  “concealment” itself as a constitutional right – one that requires a federal court order making multiple separate findings to overcome, including that the posting be actionable “libel.”  Of course, in the political sphere, the leading Supreme Court decision (NY Times v. Sullivan) requires for such libel that the speaker have actual knowledge of falsity (or be in reckless disregard) – rather impossible to allege when you do not know who the speaker is.  The Dendrite approach benefits very few whistleblowers but has momentous collateral consequences.  Indeed, the vast majority of those interested in hiding their identity are doing it because if the audience is so informed (be they the Koch brothers or an oil company or someone with an obvious grudge) their messaging potency will be reduced.  And they seek concealment precisely because transparency and accurate information inhibits deception efficacy.

The denigration of the audience’s right to know who is talking (and who is financially behind the talker) necessarily occurs with the overly broad elevation of “concealment” itself as a First Amendment right.  And it has implications for any statutory or rulemaking effort to require speaker identification of himself and his financial stake/backers – for any such requirement then must be a “compelling state interest” to limit this “concealment” right, and any such limitation must be narrowly tailored. In practical terms, this will mean that effective disclosure obligations will be impossible to enact or adopt.   Where concealment itself is so elevated, it necessarily remains effectively inviolate – except for very narrow allowable disclosures.  For example, requiring disclosure of campaign messaging may be allowed  for the period (only) just before an election.  It would interfere with the primal “concealment right” that some have elevated, to abridge it to any degree beyond a clear “compelling state interest to do so” and even there, only where there are “no less restrictive” means of accomplishment and where it is narrowly tailored to achieve that state interest.    There are many examples of how this fundamental rule of Constitutional interpretation will hamstring transparency and allow special interests to hide with effective impunity.   For example, concealment of Internet lobbying sources will be protected so long as the message “does not urge a particular vote.”

These are but several of the many expected “narrow tailoring” limits required for any restriction on a First Amendment (Fundamental Liberty Interest) right.  Declaring such a right as occupying the First Amendment Liberty Interest – necessarily triggers this regime of “strict scrutiny” of any limitation to it under Constitutional Law doctrine.  And the irony here is that when concealment itself is elevated to that Fundamental Liberty Interest status, it necessarily supersedes the contrary free speech right to know who is talking.  Concealment may then be limited (or disclosure compelled) only sparingly.  Instead of promoting disclosure as the primary First Amendment-serving value, and concealment as one that may be allowed as a compelling state interest where retaliation or other factors commend it, the Dendrite rule reverses the ranking.   Indeed, an approach preferable to such a perverse hierarchy would posit concealment and disclosure as, at the least, co-equal First Amendment elements and allow a more equitable balance.

The “concealment as paramount”  rule of law will not only prevent school rules to discourage anonymous accusations about who 14-year-old Dolores is sleeping with, but will on the larger political front prevent statutes and rules to let the electorate know who (or which corporation operating now as a “person”) is publishing an attack.   Those promoting concealment out of sympathy for “whistleblowers” do not appreciate the reality that when we conceal, we do not know they are innocent angels.  They can be anyone.   The whole point behind concealment is that we allow it to be anyone.  We do not know, and we hobble ourselves to preclude us from knowing, by the presumption that concealment is the Free Speech rule unless a high burden is met.  And, as noted, that burden is often catch-22 precluded (e.g., if you knew who it was you could show actual knowledge of falsity to qualify as libel or meet the other Dendrite tests, but you do not, so you cannot).

We do not know that the speaker is accurate, and do not know his often profound economic or personal bias.  Political accusations commonly denigrate those who support a child safety net or medical coverage or any other public policy not consonant with short-term corporate profit considerations.   Many of those with such an economic bias will gladly assure each other that they are the whistleblowers, seeking to stop socialism or domination by the “moochers.”   More relevant, those behind some of this messaging and influence know that were their identity to be disclosed, it would undermine message efficacy precisely because the electorate will discount the speaker, knowing his identity and economic interest.   Increasingly, the public lacks that information – knowledge essential to transparency and democratic efficacy.   The balance between influence of the body politic by those with an immediate profit-stake and those of us who necessarily represent the diffuse and long term interests of children, is much affected negatively by policies that favor speaker concealment.

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Questioning U.S. Gun Policies – Who is Representing Us Anyway?

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This week appears to be a critical week in the efforts to move forward with common sense gun policies.  Unfortunately, President Obama’s calls for a ban on assault weapons and larger capacity ammunition magazines have completely stalled.  While not the focus of this week’s blog, I would be remiss to report this news without taking a moment to express my deep frustration and confusion.   In particular, how is a ban on large capacity ammunition magazines completely off the table?  What happened to our outrage after the shooter in Sandy Hook killed innocent children and school personnel by firing 154 bullets in less than five minutes through the use of his 30-round clips?  How many lives could have been spared if he had to reload more frequently?

Let’s talk about the measures that are currently on the table – efforts to strengthen current background check requirements – and the policies that are influencing the lobbying against these efforts.  Supporters would like a universal background check and would like to close a loophole in current law that requires no such check for sales at gun shows or through private sellers.  As reported by NPR, the NRA has previously expressed support for expanding background checks but since the Newtown shootings, the organization has been staunchly opposed to the idea.  Other gun rights advocates have tried to find a bit of a more balanced approach by expressing they might be open to expanding background checks to private sellers and sales at gun shows, but are against keeping records of those sales because that could lead to the creation of a national gun registry and they fear what the government will do with that information.

To put into context the NRA and other gun advocates’ lobbying on the current efforts to expand background checks, let’s look more closely at some of their recent lobbying efforts.  According to the Center for American Progress, since the 1970s, and increasingly over the past decade, the NRA and others in the gun lobby, have pushed Congress to incrementally chip away at the federal government’s ability to enforce gun laws and protect the public from gun crime.  The Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, is the Federal licensing body for firearms dealers. Among other duties, the ATF is responsible for protecting our communities from violent criminals, the illegal use and trafficking of firearms, and ensuring that federally licensed firearms dealers comply with the laws and regulations that govern their businesses.  Since 1979, the ATF has been prohibited from creating a centralized database of gun sales records already in its possession.  One portion of these records includes the, on average, 1.3 million records ATF received each month from out-of-business dealers.  ATF is forced to keep these records in boxes in warehouses or on microfiche.  Because there is no centralized electronic database of gun records, when a gun is found at a crime scene, ATF agents must take days, or even weeks, sifting through hundreds of thousands of paper records, making numerous phone calls to the manufacturer or dealer that first sold the weapon, and relying on records kept by federally licensed firearms dealers in an attempt to identify the weapon’s owner.  Not surprisingly, this delay severely frustrates criminal investigations.  Why does the NRA and its allies want to thwart criminal investigations?  Further, considering there were more than 333,445 firearms traces in 2012, how much money could be saved by digitizing the records rather than paying for the man-hours required to complete the complicated and time-consuming paper search that would otherwise be completed with a few keystrokes and clicks of a mouse?

Thanks in no small part to the NRA’s lobbying efforts, since 2004, the FBI has been limited in their ability to maintain records that would help identify people who buy guns for another person who can’t legally purchase a gun, otherwise known as straw purchasers.  Currently, the FBI may only retain records of individuals who have successfully passed the National Instant Criminal Background Check System for 24 hours.  This limits law enforcement’s ability to recognize patterns that often suggest straw purchasing and gun trafficking.  The quick destruction of these records also removes ATF’s opportunity to proactively identify corrupt gun dealers who falsify their records to enable straw purchases.  Prior to 2004, the FBI retained these records for 90 days, allowing law enforcement the opportunity to look at the data for indications of criminal activity and to ensure the background check system is functioning properly and not being misused.  Why are the NRA and its allies thwarting the ability of federal agencies to be alerted to criminal activity before public safety has been jeopardized?

Perhaps most troubling is the NRA’s continued efforts to prevent any research into gun violence or into efforts to make guns and their use (and users) safer.  At the urging on the NRA, in 1996 Congress essentially silenced any federal public health research into firearms injuries by prohibiting the Center for Disease Control (CDC) from spending federal dollars on research that could be used to “advocate or promote gun control.”  CDC funding for firearms injury and prevention research has fallen from an average of $2.5 million annually between 1993 and 1996, to around $100,000 annually in 2012.  In 2002, in a rare move of funding for research, Congress appropriated $1.5 million to develop a National Violent Death Reporting System (NVDRS) designed to provide data on violent deaths in the United States in the hopes that the data will allow the development of strategies to reduce and prevent such deaths.  Unfortunately, the NVDRS is limited to 18 states and the NRA and their allies have pushed for restrictions limiting the data as it relates to gun deaths.  Again, why does the gun lobby want to limit publicly available information?  Why can’t we know what it takes to make guns safer?  This attitude is particularly troubling in light of a recent report by Bloomerberg indicating that gun deaths will likely exceed traffic fatalities by 2015.  The fall in traffic deaths has resulted from safer vehicles, restricted driving privileges for unsafe (young) drivers, seat-belt and other safety laws – all policies driven by our well researched information.  By contrast, the gun lobby’s successful push to limit up-to-date public health research into gun violence and gun-related injuries and deaths has resulted in  a dearth of information in this area and legislators and policymakers are left to guess how to best address these issues.

If you, too, think the time has passed for the NRA to be creating our national gun policy, I urge you to do something now.  The Children’s Defense Fund (CDF) is spearheading a sign-on letter in support of stronger laws to protect our children from gun violence.  Please consider signing on.  Or, go online, here, to send a letter to your representative – just fill in your name  and address and an email will be sent to your representatives expressing your desire for common sense gun safety laws.  You can also check out http://www.sandyhookpromise.org, a website created by members of the Newtown Connecticut community, together with parents of the victims at Sandy Hook to address gun violence.

Author: Christina Riehl, Senior Staff Attorney at CAI